Reform of public-sector ombuds was the focus of a seminar on 5 February 2018, co-hosted by JUSTICE, the Ombudsman Association, and UKAJI. It was attended by more than 50 practitioners, law makers, researchers and policy makers and generated a lively discussion about the reform of the public-sector ombud. Below are some background context and a summary of the presentations and discussion.

Context

Consolidation of the public service ombudsman landscape in England has been a long time in the making, with the Collcutt Report calling for reform in 2000. However, on 5 December 2016, the Cabinet Office finally published the draft Public Service Ombudsman Bill, setting out its proposals for bringing together the responsibilities of the current Parliamentary and Health Service Ombudsman (PHSO) and the Local Government and Social Care Ombudsman (LGSCO) to create a new organisation with strengthened governance and accountability for complaints about public services in England and the UK reserved to Westminster.

The Bill has had a long gestation. In 2011 the Law Commission issued a report making a number of recommendations for reform in the landscape of the public services ombudsman. In 2014 the Public Administration Select Committee published their report Time for a People’s Ombudsman. Robert Gordon CB subsequently carried out a review, followed by a public consultation in spring of 2015, the government’s response one year ago, and then the draft Bill in December 2016. The Bill did not appear in the May 2017 Queen’s Speech, however, suggesting that there will be a delay in implementing any reforms to the landscape.

In the meantime, ombudsman reform has been taken forward by the devolved administrations, with the new powers and approaches taken by the public services ombudsman in Scotland, Wales and Northern Ireland, providing evidence on best practice in the 21st century.

The pause in taking forward the draft Bill provides an opportunity for researchers, legal practitioners, policy makers, parliamentarians, ombudsman, and others to exchange views on the strengths and weaknesses of the current proposals in the Bill, what aspects of change are most pressing and how change might be achieved without legislation.

Seminar

Chair Walter Merricks (Chair of JUSTICE Board) set out the history of ombud reform, including the first major report from JUSTICE, the Whyatt Report.

Presentations – panel 1

Setting out the broader history and context of the public-sector ombuds, Nick O’Brien (University of Liverpool) described debates about the role of the ombud (‘ombudsmouse or ombudsman?’) and the shifting emphasis on dispute resolution (fire fighting rather than fire watching). He cited the innovative changes in Scotland, Wales and Northern Ireland, and the evolution of the ombud in other parts of the world where it has an explicit human rights role, as models of alternative ways to proceed with reform in England and the UK reserved to Westminster.

Human rights and administrative justice are entwined if envisioning administrative justice as a set of principles and values, as UKAJI has done. This alternative vision offers more possibility for impact than the approach to reform taken so far, which is primarily tinkering at the edges, with no evidence of a strategic approach to development of the ombud institution. The current draft PSO Bill would push the ombud down the path of the small claims track, a complaints processor. A power to initiate investigations would be the one thing that might have been transformative, but it was rejected as inviting ‘ombuds mischief-making’ and further complicating a complex maze of regulatory bodies in England. Another potentially transformative power that was rejected in the draft legislation is the role of design authority in relation to the complaints handling of bodies in jurisdiction. This can be done without explicit powers, as the LGSCO has demonstrated – humanising bureaucracy rather than the trimmed-down ‘humanising bureaucracy’s handling of complaints’.

Public authorities are more than providers of services, and ombuds are more than resolvers of disputes. O’Brien set out three possible ways forward: pick up where the Bill left off and progress down the path of the small claims route (but is it realistic to think that government will provide a properly resourced mass consumer redress scheme for public services?); go back to basics, ask searching questions, and do a root-and-branch review of where the ombud sits in a reformed vision of administrative justice; or give up and make the best of a bad job – try again, fail again, fail better.

Nick Bennett (Public Services Ombudsman for Wales) described the expectations for the new legislation in Wales, which has taken many years (and has felt at times like Waiting for Godot), and noted that it is better to have hope deferred than to have no hope at all. Developments across the UK suggest that we are heading toward a Celtic system of public-sector ombuds where own-initiative powers and a complaints standards authority role are standard, and an Anglo-Saxon system where they are not. Although the new legislation in Wales is not a foregone conclusion and it is wise not to be complacent, there is room for hope.

Helen Megarry (The Adjudicator) commented from the perspective of The Adjudicator, which is both a complaint-handling body and a body in jurisdiction of the PHSO. There were missed (perhaps even ‘squandered’) opportunities for ombuds reform, with the narrowest role of the ombud articulated, and the consultation on the legislation shut down the debate on functions. One perspective that was missed was that of the citizen and the role of the ombud in restoring citizen trust.

Discussion

Mick King (Local Government and Social Care Ombudsman) stressed that the current incumbents (LGSCO and PHSO) are supportive of reform and keen to address the fragmentation and atomisation that reflects the current situation. We should not seek reform at any price; we run the risk of ending up with a timid administrative merger. A reformed ombud should not be along the consumerist model but part of the warp and weft of public accountability. And the deficit in education complaints, for which there is no ombud, needs to be addressed. We need to develop a broader sense of delivery of public goods, not limited to public services.

Richard Thomas (former Information Commissioner and AJTC chair) asked whether a binary choice is being presented. There does not have to be a tension between a ‘regulatory’ and a ‘dispute-resolution’ approach. In fact, there is a spectrum and it is rare for any scheme to operate at one extreme or the other. A balance is struck by locating the ‘right’ place on the spectrum – with most schemes involving a core function and a ‘bit of the other’. The Information Commissioner’s Office is an example of both regulator and complaints handler, with regulation as the main function, but with complaints used to uphold individual rights and as a valuable source of information. We need to be pragmatic about the Bill; if we go back to basics the opportunity will have been squandered. Our priority therefore should be to get this Bill into Parliament.

Richard Kirkham (University of Sheffield) asked whether in fact the power and ability to embed human rights are already there for the ombuds. One good thing in the Bill is that it confers power to expand the scope of an investigation, which could build on existing powers and discretion.

Mark Lister (POhWER) considered the needs of learning disabled service users and the evidence of abuse of power within hospitals and asked what can we do to advance beyond the Bill. While supporting the idea that human rights are already taken on board by ombuds, he suggested that ombuds need to be more integrated and accountable, with more ‘teeth’ and more involvement from service users.

Brian Thompson (University of Liverpool) talked about the need for the delivery of the joined up-promise of administrative justice of putting things right andgetting things right first time, and the centrality of cultural change within public bodies to its attainment. He highlighted the creation of complaints handlers’ networks for the different public service sectors in Scotland as a potentially promising development and looked forward to the discussion of the Scottish research in the next session.

Presentations – panel 2

In the second panel session, Tom Mullen (University of Glasgow) argued for the need for more clarity about how the roles of fire-fighting and fire-watching should be combined, with both taken seriously. Evaluation is important in order to clarify the best way to carry out the ombud role and to assess the ombud’s contribution. Evidence of systemic change comes in various ways: through changes in policy, in procedure and practice, in training and education, in administrative practice and in administrative culture. It seems paradoxical that we do not have enough empirical research on how ombuds work. It is important to distinguish between outputs and outcomes – outputs include large systemic investigations and inquiries, resulting in reports and guidance. Studying such outputs is relevant to evaluation but it does not tell us about outcomes or the systemic changes and whether they lead to improvements. In order to improve administration, there needs to be clarity in the context of an ombud’s own-initiative powers as to which of the watchdogs, inspectorates, complaints handlers will take the lead – ombuds have a role but are just one actor in this. What are the obstacles to ombuds’ contributing to improved administration? We can learn from research on the value of judicial review and public bodies’ ability to learn from actions taken against other bodies.

Chris Gill (University of Glasgow) discussed the report he produced with Tom Mullen and Nial Vivian on evaluating the work of the Complaints Standards Authority of the Scottish Public Services Ombudsman, a project funded by UKAJI as part of an effort to identify data needs and sources for administrative justice research. This innovative approach to standard setting in complaints handling combines a top-down and bottom-up approach through establishing complaint handler networks and raising standards of complaint handling by public bodies in jurisdiction of the ombud as well as encouraging ‘local’ ownership of complaint handling. The evaluation found that more granular data is needed, such as specific area of complaint; and there was inconsistency in data collection, for example in recording subjective measures such as learning from complaints. Echoing the earlier point, questions remain about outcomes and how to measure and what to measure in terms of improvements.

Marie Anderson (Northern Ireland Public Services Ombudsman) explained that the Northern Ireland ombud borrowed from the Westminster model in order to deal with injustice – that was very much the motivation behind establishing the NI public-sector ombud scheme as a ‘public interest’ ombud. The own-initiative powers they have are particularly valuable to give voice to the voiceless (eg those in institutional settings, where fear can prevent complaining). She argued for being brave as the only way to go with reform.

Imelda Redmond (Healthwatch) talked of Healthwatch’s role in public engagement in the design of health and social care systems. What the public wants, she said, is to be heard, to be spoken to properly and to have things improve. They are not so interested in processes and structures but want straightforward and clear resolution. Although her sense is that the public is not ‘having great conversations’ about human rights, they do expect human rights to be acknowledged and brought into complaint considerations and for their complaints to be not just a case study but an asset to an organisation – as a source of insight. She argued for being pragmatic and doing more to communicate people’s experiences, including those whose cases are not investigated.

Discussion

Rob Behrens (Parliamentary and Health Service Ombudsman) noted that the history of the ombud is not a history of failure but reflects some huge successes. He reflected on why we do not have the Bill we need – we need to talk about why the draft Bill has not yet succeeded. The delay is not only because of Brexit, but because of concerns about the record of public sector ombuds in carrying out their core role. There is, he said, ‘indiscipline within the ranks’ of ombuds commentators and lobbyists who need to focus on the prime importance of a unified public sector ombuds service.

Paula Waldron (MoJ) noted that while Cabinet Office leads on Ombudsman policy, MoJ have an interest in the wider administrative landscape. However, all policy makers are likely to be interested in potential savings when considering establishment of a new or reformed ombud and will want to ask, how much does it cost and what will it achieve?

On this point, Marie Anderson noted that the NI Assembly commissioned research on costed savings brought about by own-initiative powers. Katrine Sporle (Property Ombudsman) also suggested looking out for costs of consumer detriment of not having a reformed ombud. Varda Bondy (University of Essex) noted the obstacles to researching costs; often, for example, cost comparisons are impossible because of diverse processes or collecting and recording data and defensiveness about researcher access to data.

Carol Harlow (London School of Economics) argued that we should not let the past write-off something new; the draft Bill is part of the past and relies on reforms proposed 7-10 years ago. The future is online, with new approaches. We need to consider the role and value of the ombud – let’s assume that we write off every ombud office – what would be missing?

Neena Bhatti (Which) asked about the context of government reviews, for example on housing and social care. Has the role of the ombud, and complaint handling, within the wider reform landscape been considered?

Donal Galligan (Ombudsman Association) closed the seminar highlighting the need for joined-up thinking, and the role of the Ombudsman Association in addressing concerns about harmonisation of the ombud sector through its interest groups and other networking activities.

Further information

The House of Commons Library issued a research briefing paper on the draft PSO Bill in January 2017. This sets out the main provisions proposed in the Bill and notes shortcomings identified by individuals and organisations.

During January and February 2017, UKAJI published a series of blog posts on the draft Bill, from a range of contributors and perspectives. The initial post, by Richard Kirkham and Brian Thompson, asked whether the changes in the draft legislation constitute significant reform. In the second post of the series, Gavin McBurnie compared the recommendations for reform made by the UK Parliament and the PHSO with the proposals in the draft Bill. In the third post of the series, Della Reynolds of phsothefacts explored the draft Bill from a user’s perspective and expressed disappointment at the missed opportunity to bring in real and substantive change for users. In the fourth and final post in the series, Nick O’Brien explored whether the draft Bill’s focus on a consumerist model suggests that, in England, the ‘ombudsman enterprise’ has run out of steam.

On 6 March 2017, the Communities and Local Government Select Committee held a one-off evidence session on the draft PSO Bill with Mick King, Local Government Ombudsman, and Denise Fowler, former Housing Ombudsman.

In July 2017, the PHSO and LGO issued a joint response to the draft Bill. In this they highlighted areas where they believe the reforms could go further and the new Public Services Ombudsman’s role could be strengthened.